This
summary is provided to assist in the understanding of the
Court’s judgment. It does not comprise part of the reasons
for that judgment.

The full judgment with reasons is the
only authoritative document. The full text of the judgment
and reasons can be found at Judicial Decisions of Public
Interest www.courtsofnz.govt.nz

The government of the
United States of America has requested the extradition of
Messrs Dotcom, Ortmann, van der Kolk and Batato to face
criminal charges of copyright infringement, money
laundering, racketeering and wire fraud. The charges arise
out of the appellants’ alleged involvement in activities
of the Megaupload group of companies.

For the purpose of
the District Court hearing to determine whether the
appellants are eligible for extradition, the United States
has made use of the “record of the case” procedure for
submitting evidence, which is provided for in s 25 of the
Extradition Act 1999. The record of the case comprises a
summary of the evidence that the state requesting
extradition has acquired against the appellants, including:
extracts from a large number of emails, data stored on
servers supporting the Megaupload websites, a network
analysis of how the websites operated, an analysis of
relevant financial transactions, and the proposed testimony
of investigators who undertook undercover activities as
users of the websites and of a number of experts and
copyright owners. The record of the case is relied on as
establishing a prima facie case against the appellants,
which is one of the requirements for eligibility for
extradition.

In the District Court, the appellants sought
disclosure by the United States of documents, records and
information in its possession in relation to the criminal
charges. A District Court Judge ordered the United States to
disclose the relevant documents. The orders were upheld by
the High Court, but then quashed by the Court of Appeal. The
question in the appeal to the Supreme Court was whether or
not the disclosure orders made by the District Court were
wrongly made.

The Supreme Court has decided, by a majority
comprising McGrath, William Young, Glazebrook and Blanchard
JJ, that the District Court was wrong to order disclosure by
the United States of the documents concerned.

McGrath,
William Young, Glazebrook and Blanchard JJ have decided that
s 25 of the Extradition Act does not require that a
“record of the case” include copies of all documents it
summarises. Nor does the Criminal Disclosure Act 2008 or s
102 of the Extradition Act impose obligations of general
disclosure on a foreign state requesting extradition or
confer on an extradition judge a power to order
disclosure.

The majority has, however, held that a
requesting state has a duty of candour and good faith to
disclose any information that would render worthless or
seriously undermine the evidence upon which it relies. As
well, a requesting state must provide, in advance of the
District Court hearing, the information on which it will
rely to establish a prima facie case against the persons
whose extradition has been requested. Where the record of
case process is used, it is the record of the case that must
be so provided. There was no suggestion that the United
States had not complied with any of these obligations.

The
majority has decided that the statutory powers, in the
Criminal Disclosure Act, of a judge in domestic criminal
proceedings are not incorporated into the Extradition Act
and, accordingly, the District Court has no statutory power
to make disclosure orders in extradition cases.

Finally,
the majority has also held that the District Court had no
inherent power to make the disclosure orders that it did in
this case, because the appellants had not demonstrated that
further information was necessary for the fair determination
of their eligibility for surrender. The appellants already
had adequate access to or knowledge of the information
summarised in the record of the case.

The Chief Justice
has dissented. In accordance with the views of the majority,
the appeal has been dismissed.

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